Under California law, such a subpoena gives an administrative body the authority to compel the production of records or testimony from individuals or groups on proceedings before the body. It is an authority exercised hundreds if not thousands of times and sometimes challenged, but a dispensary attorney said he knows of no case in which a legislative subpoena seeking pot dispensary records was at the heart of an appeal.
If the state high court decides to review the matter, a ruling by the justices could be precedent setting because various California district appeals courts have had varying rulings on how a legislative subpoena can be appealed, said attorney Lee Petros for the Point Alternative Care dispensary.
"There are differing views on how to treat this," he said. "We seek clarity on this issue."
City Attorney Patrick Muñoz said the city will wait and see whether the high court takes up the matter.
A decision could come within 60 to 90 days.
The 4th District Court of Appeal earlier this month declined to reinstate an appeal by medical-marijuana dispensaries to keep them from turning over company records, including financial data and clients' names, to the city under a subpoena order.
In its Feb. 11 order, the court gave the dispensaries until March 12 to file a petition for a writ that the city says would allow the court to review the matter more expeditiously than through a normal appeal. In January, the court had found that the "case is not from an appealable order" and deemed it an "extraordinary writ" petition.
A writ is a different standard of review requiring the dispensaries, in this case, to show that an Orange County Superior Court judge abused her discretion in issuing an order to enforce the city subpoena. The appeals court can deny the writ outright, said Petros, so dispensaries would like to go the route of a regular appeal.
"Realistically speaking the appeal gives the whole case another look," he said.
The question of whether a legislative subpoena is appealable as a final judgment in a special proceeding or whether it may only be reviewed by a petition for a writ remains unsettled in California, Petros said.
In his petition for review filed earlier this week with the Supreme Court, Petros says that "the court should grant a review to give guidance to the lower courts in California on this important issue."
"Current decisions lack uniformity," he wrote. "In the absence of a definitive ruling from this Court, there will be no uniformity of decision as it relates to legislative subpoenas."
The other four Dana Point dispensaries also have or are in the process of filing similar petitions with the high court, Petros said. He also plans to seek an extension of the March 12 date to file papers with the 4th District Court of Appeal.
The court battle over the city's effort to obtain records from dispensaries that began last summer has wound its way to the highest court in California. But, for now, the justices aren't being asked to consider the question of the dispensary records that the city seeks.
Because legal battles surrounding medical marijuana dispensaries – or pharmacies as some advocates prefer to call them – are covering new territories of the law as it relates to such establishments, opinions among legal scholars and attorneys vary as to how far reaching the impact will be if Dana Point is successful in obtaining the information it seeks.
Nor is it clear -- in part because of lack of case law -- what impact Dana Point's efforts to seek contact information of members of a cooperative will have on cities around the county and the state attempting to regulate medical marijuana dispensaries.
"What everyone loses sight of is the information (the city is) trying to obtain – the private information on third parties," Petros has said previously. "The issue is should these documents of third parties be turned over? Our answer is absolutely not."
The city wants a quick resolution because it is concerned that the dispensaries may be operating in violation of existing zoning, Muñoz said.
But "there's nothing in the code that says it's illegal to operate a medical-marijuana dispensary," Petros said.
In July, the city served the dispensaries with subpoenas to turn over their records after an organization asked the city to change its zoning laws to officially allow the cooperatives. The municipal code currently doesn't weigh in one way or another, but before changing the code, the city said it wanted to make sure the dispensaries aren't acting illegally.
Not being in the code doesn't mean the operations are permitted, like many other uses not specifically addressed in municipal codes, the city says.
Attorneys for the dispensaries have objected to the release of any members' names on grounds that the city's request for records violates members' medical and financial privacy rights, the Fifth Amendment's protection against self-incrimination and the First Amendment protection of freedom of association.
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To read one dispensary's petition for review to the California Supreme Court, visit http://files.onset.freedom.com/ocregister/news/2010/02/The_Point_Alternative_-_Petition_for_Review.pdf
See the government code section 37104 on legislative subpoenas at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=37001-38000&file=37100-37200
Source: OC Register
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